Judge Says No Fair Use For Jailbreaking Xboxes; The Law Doesn't Care If Jailbreaking iPhones Is Legal

from the this-is-a-problem dept

Last month, we pointed out how ridiculous it was that modding your iPhone is considered perfectly legal, but that modding your Xbox somehow can get you three years in jail. That was to point out just how silly it was that the DMCA does not allow fair use when it comes to its anti-circumvention rules. This has long been a huge problem (and a potential Constitutional problem) for the way the DMCA is constructed. The only exceptions are manually chosen every few years by the Librarian of Congress (who recently granted the ok for modding your phone a few months back, but wasn't even asked about game consoles). Unfortunately, but not surprisingly, the judge in the case has said that this does not matter and fair use cannot apply. Again, this isn't a surprise but it does highlight how ridiculous the DMCA is.

It would seem that this case could become a rather useful one in testing the constitutionality of the DMCA's anti-circumvention rules and the lack of fair use exceptions. It's hard to think of a situation that seems more unreasonable than saying that you can jailbreak consumer electronics device 1 "because of the Librarian of Congress said so," but you cannot jailbreak consumer electronics device 2 "because the Librarian of Congress did not say so." That hardly seems like a situation that copyright law should ever allow, as it presents an undue penalty on certain new technologies.

Re: Re: How did this happen?

I am not so sure about that. If one is legal, the other should be legal, and it seems that the Patent Office is just being overly milquetoast here.

But, I should point out: Last I heard, my right to do with something I have bought as I please are NOT allowed to be infringed by the government for any reason, save if I am creating an extreme safety hazard.

Re: Re: How did this happen?

Re: How did this happen?

im willing to bet that judge has a jailbreaked phone and probably has a grandson or something that is were hes getting his inside information form and has got his but kicked on halo because of some xbox modder lol

I'll take a wild guess as to the reasoning behind this (without having read all of the facts, I admit). Lobbyists and industry folk will tell everybody that "pirate" software is the only reason for people to mod their device, and have convinced lawmakers that allowing freedom of use for a device you have bought is somehow dangerous.

With the iPhone, sense was seen but probably only due to the fact that someone convinced them that uses other than software was the primary function of the device. That is, although jailbreaking allows pirated software to be run, other functions such as the ability to move to a different operator overrode those concerns in the eye of the court, and running apps is a tertiary component of the device (beyond uses as phone and iPod).

With games consoles, however, the primary function is to run software. So, the "fair use" argument fell on relatively deaf ears even though there's many other uses for a modded console that have nothing to do with "piracy" (playing legally imported games and DVDs, being able to play an installed game if the disc is damaged, install Linux or media centre software, homebrew games, etc.).

As I said, this is just a (mostly uninformed) guess, but I reckon that's the way the logic would have gone, and why one type of device was excluded from fair use and another wasn't.

Re:

We have already point out the holes in that fallacious argument. I did a 'show and tell' as to why I mod/jailbreak my stuff: a very scratched disc that I had treated like it was made of 2 micron thick stained glass.

Can't mod anything?

hrmmm...following this through...don't change the chip program in your car's ECU (including you folks modding your Prius to improve it). Don't even think about trying to mod one of those new internet capable TVs. Using Wii remotes and the Kinect outside of their intended function(s)? Off-limits.
I know there are other situations that would fit, but I'm drawing a blank.

Re:

They don't see it that way. PC's are that way, if I buy a PC, I can reformat, crack it open, put a new OS, have sex with it and whatnot. Next step is gonna be that: Can only install microsoft products on windows 8. Also, you car will only be allowed to be filled with Chevron Ultra Permuim Expensive-as-hell gasoline or you will be jailbraking your car and thrown in jail and raped by a rapist paid by the corporations.

The importance of free software

This is the importance of free software. If Microsoft started to go that way, people can always replace it with one of the several Linux distributions. And if a Linux distribution goes that way, you can (explicitly allowed by the license) change it so it allows you to do whatever you want, AND distribute your changes so other people (who do not know enough programming to change it themselves) can use them.

By presenting such an escape valve, free software forces non-free software to stay open; thus, while Linux exists and is strong enough, Microsoft will not be able to close its operating system to third-party programmers.

Re: The importance of free software

Exactly, competition is what driver innovation and the advancement of products. I like microsoft developer tools, that is why I try to use open source more often, that tells them that I can easily switch somewhere else if they stop making good product. So long story short: if you like something buy an off-brand to give it an reason to improve.

Re:

No, that is someone being overly milquetoast. Did our Founding Fathers say "IT is the law!" and not protest against the Stamp Act and Tea Tax? No, they didn't. They protested out the wazoo and we are now existent because of their protests.

"Da law is da law" is not a good enough argument for anyone except the IMPEDED out there.

Re: Re: Is Microsoft draconian enough for you?

Microsoft fights to get modders jailed. Microsoft is an instrument of the police state, and vice versa. Just recently they threw around threats of involving "law enforcement" against the hackers working on OpenKinect, even though that work did not need to circumvent copy protection.

Re: Re: Is Microsoft draconian enough for you?

Amazing how consistently I've been misunderstood here, when I thought my intent obvious and the point incontestable. It's triggered an interesting observation that you people seem to reverse everything in your minds, with corollary that when gov't or corporations *obviously* lie to you, that reversal in your own minds turns the lies into gospel truth. I'll muse on that. Explains quite a lot.

Anyhoo, for the record, I've been warning against the police state. Using this case to point up that Microsoft and gov't *work together* is recognizing reality, NOT favoring a police state.

MIKE: as I point out in your piece of the 29th about DHS taking over domain names, YOU ain't paying attention that "the law" isn no longer relevant.

Kinect

a reframe of the DMCA

A simple reframe of the DMCA should help clarify the issue: it's actually a full-employment act for lawyers and judges (among many others). All the contradictory rulings combined with speculative/reflexive litigation mean lots of billable hours.

The iPhone jailbreaking exemption came via the interoperability-for-purposes-of-communication exception, iirc. (Which is why the iPod Touch was not included.)

Huang's point is RIGHT ON THE MONEY

I've said it elsewhere, but the modification in question does not circumvent copy protection. It circumvents playback restrictions that make the machine not play nice with unprotected 3rd party software completely unrelated to whether it is pirated, homespun, or open source.

Allowing this modification seems clearly to be the purpose of the verbiage in the DMCA when it limits the prohibition of circumvention to that which bypasses "effective copy protection." Another judge has already ruled that this verbiage does not refer to the degree of effectiveness but to that which specifically effects copy protection. The purpose then of saying "effective" copy protection can only be to rule out scenarios where where an indirect protection (such as a locked-down Xbox) effects significantly more than copy protection and thus the user should have the right to circumvent the measure.

Calling a locked-down XBox copy protection is like spraying poison in the hospital nursery ward and calling it birth control. The a fully copy-protection-circumvented copy is already made by the time it gets to a modified XBox.

Re: Huang's point is RIGHT ON THE MONEY

I've said it elsewhere, but the modification in question does not circumvent copy protection. It circumvents playback restrictions that make the machine not play nice with unprotected 3rd party software completely unrelated to whether it is pirated, homespun, or open source.

It doesn't matter whether the copy protection actually has the effect of preventing piracy. It only matters that its purpose is to prevent piracy.

For example: Say that the copy protection didn't work at all, and you could play pirated games easily without having to bypass it. On the other hand, it absolutely prevented other, legitimate uses of software (installing third-party add-ons, backing up your games, etc).

Even though the only effect of that copy prevention is to prevent legitimate uses, it is still illegal to circumvent it, because even though it's a total failure, its purpose is to prevent piracy.

That's essentially what the DMCA's anti-circumvention clause says. And it's why the DMCA's anti-circumvention clause should be repealed.

Re: Re: Huang's point is RIGHT ON THE MONEY

No Karl, it's not "prevent piracy." No such clause exists. The verbiage of the clause is what the judge is going to rule on and circumvention refers to measures that effectively (i.e. have as their function to) "protect" against copying.

You gotta take piracy out of the picture here and just look at the nuts and bolts. Don't take me wrongly, here. I'm NOT arguing that the measure has to have the effect of preventing piracy.

I'm arguing that the measure has to be a measure for blocking/disrupting copying specifically. That's the nuts and bolts of anti-circumvention, and it's a hugely meaningful distinction.

Take libdvdcss as an example. The encoding of the DVD makes it so that if you copy the DVD (without any circumvention) you get a scrambled copy. That actually is a measure made to block copying, and so distributing libdvdcss meets the requirements for being illegal circumvention.

The XBox lockdown however has nothing to do with whether or not a copy can be made, and thus is not, (regardless of what its intent is, regardless of how effective it is) NOT functionally a copy protection measure. Whether or not it's intended to curb piracy does not change the fact that its technological function is not to interfere with the copying process, but rather to specifically stop what IS a protected activity under the DMCA, specifically engineering for interoperability with other works that are not encrypted.

See, right here where you say, "Even though the only effect of that copy prevention is to prevent legitimate uses, it is still illegal to circumvent it, because even though it's a total failure, its purpose is to prevent piracy."

That's just it. What is bypassed in the XBOX mod is NOT a copy prevention. There IS a copy prevention being used, to be certain. Similar to libdvdcss, there is some encoding that without circumvention would get you unusable, less usable, or even-intended-to-be-less-useful copies - let's call that Encrypto (cause it's a cool name, right?). The XBox mod doesn't touch Encrypto. Encrypto is the only functional protection here against illegal copying and the XBox mod does nothing to circumvent it.

Now, MS, in all their wisdom say,"Well we want to include other measures. We want to make it so that you can only use software built with Encrypto." That's great, and they are more than free to do so, but circumventing that measure is NOT circumventing a copy protection.

Whether Encrypto is perfect at stopping copying or perfectly worthless, it IS the copy protection. Alternatively, the lockdown measure that says you can only play Encrypto'd software on your Xbox, call it Locko, isn't a protection against copying at all. Again I'm not saying it's no good, I'm saying Locko does something altogether different than Encrypto, and what it does can not be called copy protection.

It's not about the legitimacy of the use, or the effectiveness of the measure. It's about what the measure DOES. Encrypto functions as a copy protection. Locko does not. Bypassing encrypto, no matter how effective it is, no matter legitimate the use, IS de facto circumvention. Bypassing Locko is NOT.

Modding Xboxes

Great article, and you are SO right!
I wish lawyers understood this as well as you do. I remember, when I was in law school, the Constitutional Law courses were heavily emphasized (though obviously not heavily enough).

The inmates are running the asylum

This is just stupid.
a) has Microsoft been paid for the XBOX? "yes"
b) is this "jailbreaker" copying the XBOX OS? "no"
c) is he copying and manufacturing hardware identical to the XBOX? "no"
d) is he, by any valid rational argument reducing Mircrosoft's sales by his tiny (percentage wise) operation? "no"

Defendant is found not guilty, case closed.

This is about Microsoft's paranoid fear of Open Source as competition for Windows. After the machine leaves their hands it should be (in a sane world) none of their beeswax what anyone does with it. They got paid, nuff said.

Re: Don't buy an Xbox

Screw that! MS doesn't have the right to make up rules of use for my XBox anymore than GM has the right to make rules of use for my car! If I want to supe them up, I get to supe them up. Condemnat venditor!